The state’s new law runs counter to recently announced civil rights principles

June 24 2015Many state legislatures are beginning to debate the policy guidelines regarding the use and implementation of police body-worn cameras (BWCs). For example, in response to the tragic death of Walter L. Scott, South Carolina Governor Nikki Haley signed legislation on June 10 requiring all state and local officers to wear body cameras, calling on law enforcement agencies to develop policies and procedures for their use. Last Friday, Texas’ governor signed a major piece of legislation that will shape the implementation of body-worn camera programs across the nation’s second largest state.

As we recently covered, just this past month, a diverse coalition of civil rights, media rights, and privacy groups announced an important set of civil rights principles for body-worn cameras. Though Texas Senator Royce West touts the Texas law as a potential “national model” for body-worn camera policy, there are several, critical problems with the Texas law — largely as they relate to the civil rights principles — which should prevent it from being used as a national template.

First, though the law requires individual law enforcement agencies to develop and adopt policies for the use of body-worn cameras, it does not affirmatively require that these policies be developed with input from their communities, nor does it require the policies be made publicly available. Though it’s possible that some Texas law enforcement agencies will take these steps, that the law does not explicitly call for these baseline procedural requirements is a clear misstep.

Second, the law says that body-worn camera policies “must include…provisions entitling an officer to access any recording of an incident involving the officer before the officer is required to make a statement about the incident.” This policy requirement runs directly counter to the fifth civil rights principle, which asks agencies to prohibit officers from viewing footage before filing their written reports, thus preserving the independent evidentiary value of officers’ reports. As the ACLU’s Jay Stanley has argued, allowing officers to view footage before writing their reports is “a poor investigative tactic” which can “undermin[e] the legitimacy of investigations.”

Third, under this new law, for any footage that documents the use of deadly force or “is otherwise related to an administrative or criminal investigation of an officer,” that footage may not be released to the public until the conclusion of any criminal or administrative proceedings. This type of footage is exactly the footage that must be available to the public in order for cameras to provide meaningful accountability. Despite that, this provision would shield critical video footage behind criminal or administrative proceedings, which means it could take many months, or even years, for a video that captures an officer-involved shooting death to come to light. Public access to this type of footage certainly requires a balancing of accountability, investigatory, and privacy interests. Nevertheless, as the fourth civil rights principle notes, there should be a minimum set of circumstances under which footage — especially of police use of force — must somehow be made available. Not only does this law not provide such avenues, but it also expressly prohibits such disclosure.

The Texas law also unnecessarily muddies other public access issues. As the bill specifies, even when an individual makes a valid records request for footage, a law enforcement agency “may…release [the] information requested,” but it is not bound to do so. Departments are also allowed to charge a public access fee “to cover the cost of reviewing and making the recording.” Such permissive language could be construed to allow a fee in the thousands of dollars. While it is understandable to seek fees to cover the cost of making existing footage available, the fee requirements should be specifically tailored to only recover these specific costs — not also for the cost of “making” the recording.

There are other significant problems with this law. It provides officers with too much discretion regarding when cameras must be turned on. It allows officers to use privately owned body-worn cameras, if agencies themselves don’t provide them. And the minimal reporting requirements will not help the public assess the impact that cameras are having on heavily policed communities.

Legislatures should be encouraged to set clear, statewide policies on the implementation of body-worn cameras. However, they must be more careful when crafting the rules of the road and navigating the complex policy tradeoffs that cameras raise, and must be more mindful of the civil rights implications of their decisions.